Sarmiento v. StateSarmiento v. State
This is a criminal prosecution for unlawful sale of heroin in which the defendant was convicted as charged and sentenced in the Monroe County Circuit Court. The defendant appeals.
I
The central issue presented for review is whether the warrantless electronic eavesdropping by state agents of a conversation between the defendant and an undercover police officer in the privacy of the defendant‘s home [under circumstances where it was practicable for such agents to have applied for and obtained a prior intercept warrant] constitutes an unreasonable interception of the defendant‘s private communications in violation of Article I, Sectiоn 12, of the Florida Constitution. We hold that the above electronic eavesdropping constitutes such an unreasonable interception and reverse.
A
The facts pertaining to the above issue are as follows. On February 14, 1978, at approximately 5:00-6:00 p.m. Detective Charles Hitchins of the Monroe County Sheriff‘s Office working as an undercover narcotics officer was at a bar in The Raceway Inn, in Key West, Florida. Also present in the bar was the defendant Julian Sarmiento and a young girl reputed to be living with him. Detective Hitchins had a conversation at the bar with the girl in question to the effect that he was interested in purchаsing some heroin. The girl thereupon left and had a conversation with the defendant outside the presence of the detective. She later returned to inform Detective Hitchins that he could make a buy of heroin at the defendant‘s house trailer which was located next door at 10:30 p.m. that night. Arrangements were made to meet at that location and time.
Detective Hitchins thereafter notified his superior officer, Detective Joseph Valdez of the Monroe County Sheriff‘s Office, of the proposed narcotics purchase who in turn alerted other law enforcement officers. Detective Hitchins was thereupon equipped with a hidden electronic “body bug” for the purpose of allowing the surveilling police officers to monitor any conversation Detective Hitchins might have with the defendant in the defendant‘s house trailer that night. No effort was made by any police officer connected with this cаse to apply for an intercept warrant for this electronic eavesdropping.
Detective Hitchins later went to the defendant‘s house trailer as planned with a confidential informer and made a purchase of heroin from the defendant. Several law enforcement officers were stаtioned nearby outside the house trailer pursuant to a prearranged police plan. Two of these officers, Lt. Robert Santana and Sgt. Carol Key of the Key West Police Department, monitored and overheard certain conversations inside the house trailer by means of the electronic “body bug” worn by Detective Hitchins. The conversations which they overheard in the house trailer tended to establish that the defendant had participated in selling a quantity of heroin to Detective Hitchins.
At trial, the defendant objected to and moved to suppress the testimony of Lt. Santana and Sgt. Key as to what they hеard on the electronic monitor relating to
The defendant was convicted as charged and sentenced to ten years in the state penitentiary. This appeal follows.
B
“The right of the peoplе to be secure in their persons, houses, papers and effects 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 plаce or places to be searched, ... 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.”
Central to invoking the protection of this constitutional right is a determination that thеre has been an “interception of private communications” by government agents. If so, a second determination must be made as to whether such interception was “unreasonable.” If both prerequisites are met, the above constitutional right has been violated and any evidence obtained in violation of such right is inadmissible in evidence against the victim of the unreasonable interception.
1
Our first task, then, is to determine whether there has been an “interception of private communications” of the defendant by government agents in this case. All agree that the defendant‘s private communications in his hоme were overheard through an electronic listening device by government agents. The parties sharply disagree, however, as to whether such electronic eavesdropping can be termed an “interception” in the constitutional sense.
We take it that to “intercept” a private communication, government agents must necessarily invade one‘s reasonable expectation of privacy for such is the primary interest which this constitutional right was designed to shield. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Huffer v. State, 344 So.2d 1332 (Fla. 2d DCA 1977). Moreover, a person, such as the defendant herein, has the highest reasonable expectation of privacy when he is in his home for it is this sanctuary of privacy, above all else, that this constitutional privilege was designed to protect. Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); Brown v. State, 62 So.2d 348, 349 (Fla. 1952); Church v. State, 151 Fla. 24, 9 So.2d 164, 167 (1942); Jackson v. State, 87 Fla. 262, 99 So. 548, 549 (1924). We would not be true to the spirit or intent of this constitutional guarantee or its historical antecedents were we to hold otherwise.
In the instant case, it is clear that the defendant had a private conversation in the privacy of his home with an undercover police officer. The defendant without question assumed the risk that this officer might betray the defendant‘s trust and reveal, as he did, the contents of this conversation to the outside world. That, in our view, is a reasonable risk which any person assumes when he talks to anyone as the speaker has it within his power to gauge whether to take such a risk based on his personal assessment of the person to whom he is talking. As such, there was no invasion of the defendant‘s reasonable expectation of privacy [and thus no “interception” in the constitutional sense] for the officer to listen to and later testify, as he did, to the content of the defendant‘s conversation in the home. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966).
It is for these reasons that this court in Hajdu v. State, 189 So.2d 230 (Fla. 3d DCA 1966), held that it was a violation of the
The state argues in effect that Hajdu is no longer good law because the subsequent passage of Sections
2
Our next task is to determine whether the interception of the defendant‘s private communications in his home was “unreasonаble.” It is axiomatic that to intercept private communications whether in the home or elsewhere by invading a person‘s reasonable expectation of privacy does not alone amount to a violation of Article I,
In this regard, the law is clear that it is per se “unreasonable” for government agents to intercept private communications by electronic means without first obtaining a valid intercept warrant if under thе circumstances it would have been practicable for the agents to have obtained such a warrant. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Tollett v. State, 272 So.2d 490 (Fla. 1973); State v. Muscara, 334 So.2d 167 (Fla. 3d DCA 1976).
In the instant case, the electronic interception employed by the police officers herein was accomplished without benefit of a prior intercept warrant. The state makes no contention that it was not practicable under the circumstances for the police to have applied for and obtained such a warrant. Indeed, the police had between 4-5 hours to do so between Detective Hitchins’ meeting at The Raceway Inn and the ultimate meeting in the defendant‘s housе trailer. The failure to obtain such a warrant under these circumstances makes the electronic interception herein “unreasonable” within the meaning of
The trial court accordingly committed reversible error in denying the defendant‘s motion to suppress the testimony of Lt. Santana and Sgt. Key who electronically eavesdropped on the defendant‘s private conversations and testified at trial as to the content thereof. The conviction herein must be reversed and the cause remanded for a new trial.
II
In view of our disposition of this case, it is unnecessary to consider the defendant‘s Richаrdson violation contention as the point is unlikely to arise upon retrial. The defendant‘s final contention, however, raises an issue which may arise upon retrial and we therefore must reach it.
In our view, the trial court committed reversible error in improperly restricting the defendant‘s cross-examination of Detective Charles Hitchins by precluding the defendant from inquiring into a recent criminal investigation of the detective by the state. This result is not changed by the fact that the Monroe County Grand Jury returned a no true bill against the detective in such investigation as it is the defendant‘s contention that the charges were dropped as part of an agreement with the state that the detective would testify against the defendant in this case. The defendant is entitled to inquire into such matters before the jury in an effort to impeach Detective Charles Hitchins’ testimony as a witness. Stripling v. State, 349 So.2d 187, 191 (Fla. 3d DCA 1977); Morrell v. State, 297 So.2d 579 (Fla. 1st DCA 1974).
The judgment of conviction and sentence entered against the defendant herein is reversed and the cause is remanded to the trial court for a new trial to be conducted in conformance with the views expressed in this opinion.
Reversed and remanded.
ON MOTION FOR REHEARING
Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
PER CURIAM.
The state has filed a motion for rehearing in this cause raising as a ground
Moreover, our review of the record reveals that the trial court properly entertained and heard the defendant‘s motion to suppress at the time of trial. Davis v. State, 226 So.2d 257 (Fla. 2d DCA 1969);
We have considered the other grounds urged on the motion for rehearing and find them to be without merit. The motion for rehearing is, accordingly, denied.