Shaktman v. State, 433 So. 2d 580

Shaktman v. State

433 So. 2d 580 | Fla. Dist. Ct. App. | 1983

Lead Opinion

PER CURIAM.

This is an appeal from multiple judgments of conviction and sentences entered below after a non-jury trial. The sole point on appeal is that the court erred in denying the defendant’s pre-trial motion to suppress certain tape recordings of telephone conversations between the defendant and undercover police officers. We affirm.

In a prior appearance of this case, we reversed a prior trial court order granting the very same pre-trial defense motion to suppress. State v. Shaktman, 389 So.2d 1045 (Fla. 3d DCA 1980), review denied, 397 So.2d 779 (Fla.1981). We adhere to that prior ruling today as the law of the case and note that subsequently decided cases of the Florida Supreme Court support our ruling herein. Morningstar v. State, 428 So.2d 220 (Fla.1982); Hill v. State, 422 So.2d 816 (Fla.1982).

It is now settled law, as held in Shaktman I, that the state may conduct electronic surveillance of a private conversation between the defendant and a law enforcement agent, occurring anywhere except in the defendant’s home, upon the sole showing that the law enforcement agent, as here,- consented to said surveillance; “once *581that [consent] predicate ... is met, the tape recording [of the conversation] between the consenting party and the accused may be introduced into evidence, and the absence of a warrant or order, the lack of probable cause, and the non-existence of exigent circumstances are all without significance.” 389 So.2d at 1046. That rule of law is applicable here and required the court below to deny the defense motion to suppress. The judgments of conviction and sentences under review are therefore

Affirmed.

Concurrence Opinion

HUBBART, Judge

(concurring).

I am compelled to concur with the judgment and opinion of the court. The existing law is accurately stated in the court’s opinion and an affirmance is thereby mandated in this case.

I write separately, however, to express my continued and profound concern over the virtually unrestrained type of state-conducted electronic surveillance which is permitted under our law in this case. So long as a law enforcement agent “consents” to the electronic surveillance which he himself helps conduct of conversations in which he is a party, the surveillance may lawfully take place without benefit of a valid intercept warrant, without any exigent circumstances whatever, and without a shred of probable cause; in short, the electronic surveillance may take place at the unfettered discretion of the police. This kind of unrestrained electronic eavesdropping exerts, in my view, a chilling effect on the right of free speech; it can be and has been used by law enforcement agents to silence political dissent, to harass unpopular or despised people, and to politically blackmail public officials. See e.g., F. Donner The Age of Surveillance (1980). It will continue to be so used until the courts decide to change the course of this line of decisions and exercise effective judicial control over this virtually unregulated type of electronic eavesdropping. I hope that day is not too far off, for surely we cannot live in the long run with the totalitarian result which these decisions permit.

In sum, I adhere to the views expressed in my dissenting opinions in State v. Shaktman, 389 So.2d at 1047-54 and Franco v. State, 376 So.2d 1168, 1170-72 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 636 (Fla. 1980), but am compelled to follow the established law of this state to the contrary. I, therefore, reluctantly agree to the affirmance herein.